JULIAN BOÑAGA, PLAINTIFF AND APPELLANT VS. ROBERTO SOLER, ET AL., DEFENDANTS AND APPELLEES.

From the order dated April 30, 1959 dismissing the complaint in Civil Case
No. 2123 of the Court of First Instance of Camarines Sur, Julian Boñaga,
Administrator of the estate of the deceased spouses Alejandro Ros and Maria
Isaac, appeals directly to this Court.

It appears that following the death of the spouses Alejandro Ros and Maria
Isaac in 1935 and 1940, respectively, intestate proceedings for the settlement
of their estate were commenced in the Court of First Instance of Camarines Sur,
Special Proceeding No. 7194 of that court. In time, Juan Garza was appointed
administrator of the estate. Upon application, Juan Garza was authorized by the
probate court on August 29, 1944 (Annex “X”) to sell certain parcels of land
pertaining to the estate. Pursuant thereto, Garza sold said parcels of land on
August 30, 1944 in favor of appellee Roberto Soler (Annex “A”), which sale was
subsequently approved on October 9, 1944 (Annex “B”). On October 14, 1944, the
heirs of the deceased wife, Maria Isaac, after having been declared as such
(Annex “B”), sold all their shares and interest over certain parcels of land in
favor of appellee Soler (Annex “C”).

Sometime during the war, the records of Special Proceeding No. 7194 were
destroyed. Upon reconstitution of these records by court order, Julian Boñaga
was issued letters of administration on September 6, 1951. On May 9, 1952, the
instant action was filed by Boñaga in his capacity as administrator, seeking to
annul the sales of August 30, 1944 and October 14, 1944 in favor of Roberto
Soler on the ground that said transactions were fraudulent, made without notice
to the heirs of Alejandro Ros of the hearing of the application to sell, and
that the sales were not beneficial to the heirs for various reasons, and praying
for reconveyance of the lands sold, since they were fraudulently registered
under Act 496 in the name of Roberto Soler on December 17, 1949 and on January
2, 1952, and for recovery of damages.

A motion to dismiss interposed by Soler on August 29, 1952, alleging lack of
legal capacity to sue and failure to state a cause of action as grounds, was
denied on September 17, 1952. Soler then filed his answer and counter-claim on
September 26, 1952. On June 11, 1953, Soler filed his second motion to
dismiss, raising the same grounds contained in the first motion; this was again
denied on August 29, 1953. On July 18, 1955, Soler filed his third
motion to dismiss, for the first time raising estoppel, prescription of the
action, and non-inclusion of necessary parties, as grounds. Upon an order for
plaintiff to include the vendors in the sales as parties to the case, the court,
on August 22, 1955, denied the motion to dismiss, but apparently without
resolving the issues of estoppel and prescription. On February 9, 1959, Soler
sought a resolution of his third motion to dismiss. On April 30, 1959, and over
plaintiff’s objections, the court ordered the dismissal of the action,
sustaining the contention that as administrator of the estate succeeding Juan
Garza, plaintiff was estopped to file an action to annul the sales, and,
moreover, that the action had prescribed. Hence, this appeal.

The sale on August 30, 1944 appears to be of 21 parcels of abaca, coconut,
forest and pasture lands, covering an aggregate area of more than 1,001 hectares
for the lump sum of P142,800.00, Japanese currency (Annex “A”).
Plaintiff-appellant alleges (and the record nowhere indicates the contrary),
that these lands comprised almost the entire estate. Nothing in the record would
show whether, as required by Rule 90, sections 4 and 7, the application for
authority to sell was set for hearing, or that the court ever caused notice
thereof to be issued to the heirs of Alejandro Ros. Incidentally, these heirs
seem not to have gotten any part of the purchase price since they were then
allegedly in Spain. Yet, in the order of declaration of heirs of the wife and
approving the sale to Soler (Annex “B”), the declaration of the heirs of the
husband Alejandro Ros was expressly held in abeyance, indicating a recognition
of their existence. Appellees maintain that the sale was made for the purpose of
paying debts, but this, at least, is controversial. Appellant asserts that the
total outstanding debts of the estate at the time of the sale amounted to only
P4,641.48, a relatively meager sum compared to the large tracts of land
sold.

We think the lower court erred in dismissing the action without a hearing on
the merits. A sale of properties of an estate as beneficial to the interested
parties, under Sections 4 and 7, Rule 90, must comply with the requisites
therein provided, which are mandatory. Among these requisites, the fixing of the
time and place of hearing for an application to sell, and the notice thereof to
the heirs, are essential; and without them, the authority to sell, the sale
itself, and the order approving it, would be null and void ab initio
(Arcilla vs. David, 77 Phil., 718; Gabriel, et al. vs.
Encarnacion, et al., 94 Phil., 917; 50 Off. Gaz., [6] 2440, and others cited
therein). Rule 90, Section 4, does not distinguish between heirs residing
in and residing outside the Philippines. Therefore, its
requirements should apply regardless of the place of residence required to be
notified under said rule.

The contention that the sale was made under Section 2, Rule 90 (wherein
notice is required only to those heirs, etc., residing in the Philippines), is
not substantiated by the record. Neither the deed of sale on August 30, 1944,
nor the orders issued by the probate court in connection therewith, show
whether, as required by said Section 2, the personal properties were
insufficient to pay the debts and expenses of administration. There is not even
a showing, to start with, that the sale was made for the purpose of paying debts
or expenses of administration (or legacies), a condition which circumscribes the
applicability of that section. On the face of the reamended complaint at any
rate, it does not appear that the contested sale was one under section 2 of Rule
90; and the same can not be invoked to sustain the motion to dismiss. Without
reception of further evidence to determine whether the requisites of the
applicable provisions of the Rules had been followed, the dismissal of the
action was erroneous and improvident. Plaintiff should at least have been given
a chance to prove his case.

As to the plea of estoppel, the rule is that a decedent’s representative is
not estopped to question the validity of his own void deed purporting to convey
land (Chase vs. Cartwright, 22 Am. St. Rep. 207, and cases cited; Meeks
vs. Olpherts, 25 L. Ed. [U. S.] 735; 21 Am. Jur. 756, s 667); and if
this be true of the administrator as to his own acts, a fortiori, his
successor can not be estopped to question the acts of his predecessor that are
not conformable to law (cf. Walker vs. Portland Savings Bank, LRA 1915
E, p. 840; 21 Am. Jur. p. 820 s. 785).

We also find untenable the claim of prescription of the action. Actions to
declare the inexistence of contracts do not prescribe (Art. 1410, N.C.C.), a
principle applied even before the effectivity of the new Civil Code (Eugenio, et
al. vs. Perdido, et al., 97 Phil., 41; citing Tipton vs.
Velasco, 6 Phil., 67 and Sabas vs. Garma, 66 Phil., 471). The sale on
October 14, 1944 by the heirs of Maria Isaac of whatever interests or
participation they might have in the four parcels of land covered by the deed
may be valid (De Guanzon vs. Jalandoni and Ramos, 93 Phil., 1089; 49
Off. Gaz., [12] 5435; De Jesus vs. Daza, 77 Phil., 152; Cea
vs. C.A., 84 Phil., 798), yet it could not have effected an immediate
and absolute transfer of title to appellee Soler over any part of the parcels of
land themselves, much less over their entirety. Necessarily, the sale was
subject to the result of the administration proceedings, a contingency upon
which the deed of sale itself expressly founded the transaction. By its terms,
not only was the existence of possible heirs of Alejandro Ros recognized, but it
also provided for the contingency that said heirs could yet be declared or
adjudicated in the administration proceedings as the sole owners of the four
parcels being sold.

The subsequent registration of those lands covered by the sale of October 14,
1944 and that of August 30, 1944, allegedly in the exclusive name of appellee
Roberto Soler, gave rise to an action for reconveyance based on trust. Assuming
that this case is one of constructive trust, and under the theory that actions
to recover property held in constructive trust would prescribe, there is here no
showing as to when the alleged fraud was discovered (Article 1391, N.C.C.).
Hence, it cannot be said that prescription has tolled the action.

Finally, neither in the first motion to dismiss on August 29, 1952; nor in
the Answer on September 26, 1952; nor in the second motion to dismiss on June
11, 1953, was the defense of prescription raised. From the time the complaint
was filed on May 9, 1952 to the third motion to dismiss on July 18, 1955, was a
period of more than three (3) years in which it took Soler just to raise
prescription as an issue. Not having been set up in the two (2) motions to
dismiss or in the answer as affirmative defense, it is deemed to have been
waived (Rule 9, Sec. 10; Rule 26, Sec. 8; Pascua vs. Capuyoc, 104
Phil., 837; 57 Off. Gaz., [22] 4084). Obviously, prescription in this case does
not appear on the face of the pleadings, where failure to plead it would not
have constituted a waiver (Chua Lamko vs. Dioso, et al., 97 Phil.,
821). On the contrary, it would appear to raise an issue of fact not contained
in the pleadings, i.e., the time the fraud was discovered. And this,
furthermore, necessitates reception of evidence.

Wherefore, the appealed order dismissing the complaint in Civil Case No. 2123
of the court below is reversed, and the case remanded, with instructions to
proceed in accordance with this decision. Costs against appellee Roberto
Soler.

Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes,
Dizon, De Leon, and Natividad, JJ., concur.